Delay In Showdown Between County Supervisors and the Constitution

The Board of Supervisors of San Diego County delayed their vote on a very controversial proposal to limit free speech and assembly in and around the new Waterfront Park that surrounds the County Administration Building.

After some discussion, the Board said it needed more time and unanimously voted to send the proposed ordinance that would in part set up so-called “free speech zones” and require permits for large gatherings back to County lawyers for clarifications and revisions.

Supervisor Dianne Jacob appeared to be the most vocal Board member to question the proposal. She commented that it needs to provide better clarity as just when demonstrators had to obtain a permit. She said:

“I am not convinced, the way the ordinance is written, it does that.”

County Counsel are supposed to bring their changes back to the Board on July 21.

It was County staff that had recommended the proposal, claiming that those exercising their First Amendment rights were interfering with those using the park or coming to and fro the County headquarters on business, including county employees.

It was the County’s Chief Administrative Officer Helen Robbins-Meyer’s recommendation – and she wanted the Board to approve a county ordinance to set up limitations of free speech and assembly at the park. Her core idea is essentially not to allow protests to hinder recreational or civic use of the park area. She urged the Board to approve it immediately. The San Diego U-T caught her in a quote full of double-speak:

County Chief Administrative Officer Helen Robbins-Meyer said the ordinance is designed “to protect the folks who want to come down and have free speech.”

The new restrictions and limitations and “free speech zones” are actually established to protect free speech. But from whom does free speech have to be protected?

Several in the audience spoke out against the proposal, as a couple of law groups and members of the public expressed concern that regulating free speech at the Waterfront Park would limit the First Amendment rights of San Diegans. San Diego7 reported that:

One Vietnam War veteran spoke at the meeting recalling how he was proud to read about Vietnam War protesters in the U.S., exercising their rights. “Occasionally I am offended by protesters’ materials but I chalk that up to my obligation to tolerate different opinions in America and make room for differing opinion, ” David Patterson told the supervisors.

KPBS reported:

The city of San Diego does not require free speech permits for protests regardless of size, according to Kate Yavenditti of the National Lawyers Guild.

What gave the Supes pause, however, was a letter from David Loy, Policy Director of the San Diego chapter of the ACLU, made public. Loy said the proposed ordinance :

“raises significant free speech concerns, which I hope the County will cure by appropriate clarification and revision.”

Loy had a number of criticisms of the draft: it uses overly vague language and is confusing just when a permit is required, it prohibits demonstrations based on their message, and that it needed to be changed so it only required permits for large groups that would pose significant concerns for occupying public space. In his letter, Loy stated:

“Any speech that offends or disturbs anyone engaged in ‘picnicking, lounging and general enjoyment’ arguably ‘interferes’ with those ‘uses and functions’ and thus would justify restricting that speech. That result would violate the First Amendment.”

On its vagueness, Loy said :

“The reason for that is to ensure that there is no ambiguity or wiggle room for untrained or ill-meaning officials to engage in censorship of speech based on content or viewpoint. This is why we have to draft these things very clearly and narrowly and specifically.”

The U-T further reported on Loy’s statement in his letter:

… The law needs to be written in a way that it only requires permits for large groups that would pose significant concerns for occupying public space. Even then, it’s not not always necessary to regulate free speech since there are existing laws that could address some of the challenges created by large crowds. For example, the county could require that entrances and exits to the administration building be kept clear from protesters and it could enforce assault laws in case crowds turn violent, Loy said.

Parks, by their very nature, are intended to be public forums in addition to recreation spaces. The county needs to be very careful when regulating free speech, and restrictions need to be extremely limited. It might make sense to forego regulations altogether, Loy said.

“I’m not convinced that free speech zones are necessary at all at Waterfront Park,” he said.

KPBS reported on the Board’s discussion on the proposal’s application to all county parks:

Supervisor Dianne Jacob expressed concern that all county parks should uphold the same rules regarding free speech activities, though the Waterfront Park is far more widely used than others.

“This doesn’t make sense to me,” Jacob said. “I think it’s mischaracterized. All of our parks should be treated the same and have the same rules.”

Other county parks have designated free speech zones, but do not require permits, according to county staff. Jacob suggested staff consider requiring groups to obtain a special events permit, rather creating a new permit for First Amendment activities.

There is some confusion – maybe it’s just us. No vote on the proposal was taken, except to send it back to the lawyers. So why is there a planned second reading on June 23? County Counsel were ordered back with their revisions on July 21.

Stepping back for a moment, we here at the OB Rag are pleased that the Board is taking a second look at this issue. Why does an ordinance need to be written at all? We think they should drop the matter. What’s the problem? Why does free speech and free assembly have to be regulated at the County’s Admin Building and Waterfront Park?

We believe that these so-called “free expression zones” are actually anti-free expression zones and are unconstitutional restrictions on our First Amendment Rights. Federal courts in our part of the country agree with this.

We’ll continue following this issue with the County and provide updates.

Related

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Sure, and this is always our bottom line, but over the decades the absolute expression of our rights has been restricted (beginning with the old ‘yelling ‘fire’ in the theater scenario’), and the courts have placed limitations of time, place and manner on the expression and exercise of our free speech rights. Like them or not, these limitations are the “law”.

I deduce from SCOTUS’ previous comments on civil liberties that your right to free speech in the waterfront park ends at my right to enjoy the park. Unless you’d argue the public doesn’t have a right to enjoy the park? Or Mr. Joe Shmoe’s rights, who just wants to go to work in the building but cannot because of obstructive gatherings. These are the issues the board is trying to address, very reasonably, and very carefully. Liberty is not anarchy, you’ll get your day on the lawn. But you just can’t ruin my day with the kids in the park all nimbly bimbly. Order, Watson! *said Holmes* (get it?). There’s gotta be order.

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